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Bergstein & Ullrich, LLP

This blog covers the civil rights opinions of the Second Circuit Court of Appeals. Sponsored by the law firm of Bergstein & Ullrich, LLP, New Paltz, N.Y. We can be reached at www.tbulaw.com. This blog should not be construed as offering legal advice.
Bergstein & Ullrich is a litigation firm formed in 2001. We concentrate in the areas of civil rights, employment rights and benefits, workplace harassment, police misconduct, First Amendment and appellate practice.
We are admitted to practice in the courts of the State of New York, the Southern, Eastern and Northern Districts of New York, the Second and Third Circuit Courts of Appeal and the United States Supreme Court.
This blog's author, Stephen Bergstein, has briefed or argued approximately 200 appeals in the State and Federal courts.

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Tuesday, July 22, 2014

Plaintiff alleges Title VII national origin discrimination claim

The Court of Appeals does not often reinstate discrimination complaints following dismissal in the district court, but it does so in this race and national origin discrimination case brought against a Japanese company that operated a subsidiary in Rockland County.

The case is Brown v. Daikin America, decided on June 27. Plaintiff worked for the Rockland entity. His workgroup consisted of six employees, three of them white Americans. The rest were Jamanese citizens of Japanese national origin. The Japanese employees had previously worked for the Japanese parent but wound up in the U S of A under a rotational assignment program that would last several years. During a reduction in force, plaintiff and another white American were fired. The other white American was transferred out. The three Japanese citizens remained employed in the Rockland group. In all, seven Americans lost their jobs in the RIF, but no Japanese employees were fired.

The question here is whether plaintiff makes out a prima facie case, which requires an allegation that he was fired under circumstances creating an inference of discrimination. "Defendants argue that Brown’s allegations do not support an inference of discrimination because the Japanese rotational employees at Daikin America were not 'similarly situated' to Brown and the other American employees. Therefore, defendants argue, the companies had no duty to consider the Japanese employees for termination as part of the workforce reduction, and Brown has not provided a basis for inferring that his termination was discriminatory." But that's not how the Court of Appeals (Carney, Lohier and Lynch) sees it.

Brown is "similarly situated" or comparable to the Japanese employees. They shared a common employer, the entity in Japan. All were subject to the same workplace standards in that he and two Japanese workers reported to the same supervisor."Drawing all reasonable inferences in Brown’s favor, as we must, both Brown and the Japanese employees in the Group are plausibly alleged to be subject to the same performance evaluation and disciplinary standards, and therefore similarly situated in their employment circumstances."

If you follow Iqbal-related developments, the Court's further reasoning will interest you. Under Iqbal, the Supreme Court said in 2009 that plaintiffs must allege plausible and not merely possible liability. This seemingly subtle change in legal standards under Rule 12 has doomed many cases. Defendant here argues that plaintiff does not allege a plausible case because there were other plausible non-discriminatory reasons for plaintiff's termination.Not so, the Court of Appeals:

That there may be other explanations for the defendants’ employment decisions does not render Brown’s allegations of discrimination inadequate as a matter of law. Whether there existed non-pretextual, non-discriminatory explanations for the defendants’ employment decisions — a question as to which the defendants bear the burden of production — is not properly decided on a motion to dismiss for failure to state a claim.